The petitioners in this case are pro-life pregnancy centers, and the respondents are
state officials of the state of California.
Legally an issue in this case is the ability of the state to regulate professional speech
or conduct and whether or not they may essentially compel a message that is contrary to the beliefs
of the speakers.
In 2015, California enacted the Reproductive FACT Act.
The FACT Act imposes two disclosure requirements on pregnancy centers in California.
Crisis pregnancy centers are organized with the purpose of giving aid to pregnant
mothers in the hopes that they will choose life for their unborn child.
Some of the crisis pregnancy centers are licensed medical facilities, and they provide sonograms
and ultrasounds, prenatal services.
The unlicensed centers tend to provide more parenting counseling, assistance for raising
a child, diapers, clothing, that type of support.
The FACT Act requires unlicensed crisis pregnancy centers to display in minimum 48 point font
a statement that they are not licensed by the state of California.
That's despite the fact that they do not style themselves as or claim to be medical facilities
and they do not provide medical services.
For licensed centers, centers must inform clients that the state offers low-cost or
free abortion or contraception.
They must also provide information to clients for how to access those services.
Professional and commercial speech are two ideas that have come up in the course of the
NIFLA litigation.
Professional speech is an idea or a doctrine that some lower courts have adopted that says that
when speech is made in the course of a professional relationship, the state has a greater interest
and greater leniency in regulating that speech.
Commercial speech is typically defined as speech that proposes some sort of commercial
transaction.
The text of the first amendment does not contain any instructions for different types of speech
to be evaluated in different ways.
NIFLA contends that these services are provided pro bono and that the professional speech
doctrine, having never been adopted by the Supreme Court, just has no place in the examination
of these issues.
The state of California, on the other hand, asserts that commercial speech and professional
speech doctrines should apply because the centers are providing some sort of professional
services, and while the exchanges are pro bono, they are still commercial in nature
because they take someone out of the marketplace who may go to another location to receive
services.
The best argument on behalf of NIFLA is that because of the purpose for which they are
organized, which is to advance life and to discuss a pro-life position, their speech
receives full First Amendment protections.
And as fully protected speech, any restriction or compulsion should be examined under strict
scrutiny.
Applying strict scrutiny, petitioners argue, that the state has failed to show a compelling
reason why the FACT Act should force pregnancy resource centers to promote abortion and abortion
services.
The best argument for the state of California would be that despite the fact that there's
no actual commercial transaction being proposed, it could be regulated without having to survive
even intermediate or heightened form of scrutiny because it is mere regulation of
commercial speech or of professional conduct.
The court of appeals concluded that the FACT Act was a legitimate regulation of professional
speech.
The court believed that the state had shown an important government interest in informing
women of the availability of state-funded abortion and contraception services and believed
that the FACT Act's disclosure requirements only informed women of these services, as
opposed to encouraging their views.
The Court's decision has broader implications and could outline the boundaries in which
a government could require disclaimers that undermine the relationship of the non-profit
with the people that they're trying to serve.
If a state government can compel disclosure of a specified message, then state governments
could compel almost any business or speaker to provide information about their services
simply because of a generalized, vague concern about potentially misleading information or
a lack of information.